[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Proposed Rules]
[Pages 30988-30990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13741]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 239 and 252

[Docket DARS-2019-0029]
RIN 0750-AK11


Defense Federal Acquisition Regulation Supplement: Modification 
of DFARS Clause, ``Obligation of the Government'' (DFARS Case 2018-
D046)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to modify the text of an existing DFARS 
clause to include the text of two other DFARS clauses on the same 
subject, in an effort to streamline contract terms and conditions for 
contractors, pursuant to action taken by the Regulatory Reform Task 
Force.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before August 27, 2019, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2018-D046, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2018-D046'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2018-D046.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2018-D046'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2018-D046 in 
the subject line of the message.

[[Page 30989]]

    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Carrie 
Moore, OUSD(A&S)DPC/DARS, Room 3B941, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

I. Background

    This rulemaking proposes to modify and rename DFARS clause 252.239-
7013, Obligation of the Government, to: Incorporate the information 
included in DFARS clause 252.239-7014, Term of Agreement; create an 
alternate for DFARS clause 252.239-7013 that is used in certain 
circumstances, in lieu of the basic clause, and include the information 
in DFARS clauses 252.239-7013, -7014, and -7015; and, amend the clause 
text to align with the termination notification requirement in the FAR. 
Combining these clauses will result in DFARS clauses 252.239-7014 and 
252.239-7015 being removed from the DFARS.

II. Discussion and Analysis

    When acquiring telecommunications services, contracting officers 
often use a basic agreement in conjunction with communication service 
authorizations (CSA). A basic agreement is not a contract; instead, it 
is a document that is negotiated between a contracting activity and a 
contractor and identifies the terms and conditions that will apply to 
any future contracts between the parties. A CSA is a contract and is 
used to acquire telecommunication services under a basic agreement, 
which is incorporated by reference in or attachment to the CSA.
    DFARS clause 252.239-7013 is included in all basic agreements for 
telecommunications services and identifies when the Government's 
liability begins under a basic agreement. DFARS clauses 252.239-7014 is 
included in all basic agreements for telecommunications services and 
specifies the term of the basic agreement, the method and timeframe 
necessary to terminate the basic agreement, and the contractor's 
obligation to continue performance on CSAs issued under the basic 
agreement prior to the termination notice. DFARS clause 252.239-7015 is 
included in basic agreements that supersede an existing basic agreement 
with a contractor. The clause identifies the basic agreement that is 
being superseded and specifies that all CSAs issued under the previous 
basic agreement will be modified to incorporate the terms and 
conditions of the new basic agreement. The clause also clarifies that 
current CSAs issued by the contracting activity under basic agreements 
other than the one identified may also be modified to incorporate the 
terms and conditions of the new basic agreement.
    DFARS clause 252.239-7013 is included in all of the same contracts 
as DFARS clauses 252.239-7014 and 252.239-7015. Additionally, all three 
clauses provide terms and conditions that pertain to basic agreements 
for telecommunications services. As a result, the text of the three 
clauses can be combined, into a basic and alternate clause, in order 
minimize the number of clauses in the basic agreement, as well as 
streamline terms and conditions for and provide comprehensive 
information to contractors. This rule also changes the termination 
notification timeframe from 60 to 30 days, in order to align with the 
requirement at FAR 16.702(b)(2).
    The modification of this DFARS text supports a recommendation from 
the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. No public comments 
were received on these clauses. Subsequently, the DoD Task Force 
reviewed the requirements of DFARS clause 252.239-7013, -7014, and -
7015 and determined that the clauses could be combined.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-The-Shelf Items

    This proposed rule does not create any new provisions or clauses. 
The rulemaking combines three existing clauses on the same topic into a 
basic and alternate clause and updates a notification timeframe within 
the clause to comply with existing regulations. This proposed rule 
would not change the applicability of the affected clauses.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule is not creating any new requirements or changing any 
existing requirements for contractors. However, an initial regulatory 
flexibility analysis has been performed and is summarized as follows:
    The Department of Defense is proposing to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to modify and rename DFARS 
clause 252.239-7013, Obligation of the Government, to: Incorporate the 
information included in DFARS clause 252.239-7014, Term of Agreement; 
create an alternate for DFARS clause 252.239-7013 that is used in 
certain circumstances, in lieu of the basic clause, and include the 
information in DFARS clauses 252.239-7013, -7014, and -7015; and, amend 
the text to align with the termination notification

[[Page 30990]]

timeframe in the FAR. Combining these clauses will result in DFARS 
clauses 252.239-7014 and 252.239-7015 being removed from the DFARS, 
pursuant to action taken by the Regulatory Reform Task Force.
    The objective of this proposed rule is to streamline contract terms 
and conditions pertaining to telecommunications services. The 
modification of these DFARS clauses supports a recommendation from the 
DoD Regulatory Reform Task Force. This rulemaking combines three 
existing clauses that address the same topic into a single 
comprehensive clause and alternate clause and updating a notification 
of termination timeframe to comply with existing regulation.
    The Federal Procurement Data System (FPDS) does not collect 
information on the number of basic agreements that are negotiated or 
contracts and orders placed under basic agreements with contractors; 
instead, FPDS collects data on the orders and contracts awarded for 
telecommunication services, of which a percentage of those awards 
incorporate the terms and conditions of a basic agreement. Based on 
data from FPDS for fiscal years 2016, 2017, and 2018, the Government 
awarded approximately 24,134 contracts and orders for services under 
the Product and Supply Code (PSC) D3--Information Technology and 
Telecommunications. Of the 24,134 contracts and orders awarded over 
this period, approximately 7,530, or 31 percent of the awards, were 
made to 3,264 unique small businesses entities (an annual average of 
1,088). The PSC D3 does not break down further into information 
technology services and telecommunications services; therefore, the 
number of small business entities affected by this rule is expected to 
be less than the annual average of 1,088 unique small entities.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small businesses. 
This rule does not duplicate, overlap, or conflict with any other 
Federal rules. There are no known significant alternative approaches to 
the proposed rule that would meet the proposed objectives.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities. DoD will also consider comments from small entities 
concerning the existing regulations in subparts affected by this rule 
in accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D035) 
in correspondence.

VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 239 and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
    Therefore, 48 CFR parts 239 and 252 are proposed to be amended as 
follows:

0
1. The authority citation for 48 CFR parts 239 and 252 continues to 
read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 239--ACQUISITION OF INFORMATION TECHNOLOGY

0
2. Amend section 237.7411 by revising paragraph (c) to read as follows:


239.7411  Contract clauses.

* * * * *
    (c) Use the basic or alternate of the clause at 252.239-7013, Term 
of Agreement and Continuation of Services, in basic agreements for 
telecommunications services.
    (1) Use the basic clause in basic agreements that do not supersede 
an existing basic agreement with the contractor.
    (2) Use the alternate I clause in basic agreements that supersede 
an existing basic agreement with the contractor. Complete paragraph 
(c)(1) of the clause with the basic agreement number, date, and 
contacting office that issued the basic agreement being superseded.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Revise section 252.239-7013 to read as follows:


252.239-7013   Term of Agreement and Continuation of Services.

    Basic. As prescribed in 239.7411(c)(1), use the following clause:
TERM OF AGREEMENT AND CONTINUATION OF SERVICES (DATE)
    (a) This basic agreement is not a contract. The Government 
incurs liability only upon issuance of a communication service 
authorization, which is a contract that incorporates the terms and 
conditions of this basic agreement.
    (b) This agreement shall continue in force from year to year, 
unless terminated by either party by 30 days' written notice. 
Termination of this basic agreement does not terminate or cancel any 
communication service authorizations issued under this basic 
agreement prior to the termination.
    (c) Communication service authorizations issued under this basic 
agreement may be modified to incorporate the terms and conditions of 
a new basic agreement negotiated with the Contractor.

(End of clause)

    Alternate I. As prescribed in 239.7411(c)(2), use the following 
clause, which includes a different paragraph (c) than the basic clause 
and creates a paragraph (d) not in the basic clause.
TERM OF AGREEMENT AND CONTINUATION OF SERVICES (DATE)
    (a) This basic agreement is not a contract. The Government 
incurs liability only upon issuance of a communication service 
authorization, which is a contract that incorporates the terms and 
conditions of this basic agreement.
    (b) This agreement shall continue in force from year to year, 
unless terminated by either party by 30 days' written notice. 
Termination of this basic agreement does not terminate or cancel any 
communication service authorizations issued under this basic 
agreement prior to the termination.
    (c) The Contractor's current communication services 
authorizations have been modified to incorporate the terms and 
conditions of this basic agreement.
    (1) All current communication service authorizations issued 
by__, hat incorporate Basic Agreement Number__, dated__, are 
modified to incorporate this basic agreement.
    (2) Current communication service authorizations, issued by the 
activity in paragraph (c)(1) of this clause, that incorporate other 
agreements with the Contractor may also be modified to incorporate 
this basic agreement.
    (d) Communication service authorizations issued under this basic 
agreement may be modified to incorporate a new basic agreement with 
the Contractor.

(End of clause)


252.239-7014   [Removed and Reserved]

0
4. Remove and reserve section 252.239-7014.


252.239-7015   [Removed and Reserved]

0
5. Remove and reserve section 252.239-7015.

[FR Doc. 2019-13741 Filed 6-27-19; 8:45 am]
 BILLING CODE 5001-06-P